Getting Married?—Seriously Consider An Antenuptial (Prenuptial) Agreement

By Marty Swaden

I have been a divorce attorney for 38 years, so I have heard all the reasons as to why a couple decides against executing an antenuptial agreement. “We are in love, let’s not enter our marriage even considering the possibility of divorce.” “Executing an antenuptial agreement is an admission that our marriage will not be successful.” “You know that what is mine is yours, just trust me. I would never be unfair to you.” I fully understand the difficulty of discussing the possibility of an end to a loving relationship, but consider the following:

Ben and Chris met in college and began living together shortly after graduation. They moved into Ben’s home that Ben purchased 5 years earlier with money that he received from his family. Ben was able to secure a good paying job after graduation. Chris was only able to find part time work and was likely going to attend graduate school to make himself more employable. They pooled their incomes to pay for their regular monthly living expenses. Ben had excellent benefits from his employment: medical insurance, retirement benefits, a company stock purchase plan, and a health savings account. Ben worked long hours, so Chris was responsible for the majority of the work around the home. Chris was also very skilled at home renovations. He put in new hardwood floors, painted the entire house, and replaced most of the older fixtures with new ones. 20 years after they began living together, as soon as same-sex marriage was legalized, they decided to marry. Chris asked Ben if he would be willing to explore the possibility of executing an antenuptial agreement. Ben was hurt.  How could Chris think that anything would happen to their long term relationship? Ben assured Chris that if anything ever happened he would be more than fair. Assets would be divided and Ben would financially assist him in the future. No antenuptial agreement was executed. 5 years after the marriage, things drastically changed. Ben was more and more consumed with his work giving Chris very little of his time. Chris was angry and depressed—his work situation had not improved and he was unfulfilled. Communication between the two became difficult, and arguments were common. Chris finally told Ben after unsuccessful marriage counseling  that the marriage was not working and that they needed to divorce. Ben was irate and told Chris to leave the home immediately. Chris met with an attorney, assuming that the home and the other assets that had been accumulated over the 20 years prior to the marriage and during the 5 years of the marriage would be equally divided. He learned that since Ben was title owner of the home, and the home was purchased prior to the marriage, Ben was entitled to all of the equity in the home, except for a small amount attributable to the 5 years of the marriage. The same was true of Ben’s retirement plan, his stock plan, and other premarital assets. The marital estate was quite small, and Chris would be entitled to 50% of it. Chris called Ben and asked if he would be willing to meet with a mediator to discuss a fair division of the assets, including the premarital assets. Ben said that the law was the law, and Chris would need to be satisfied with his share of the small marital estate. He suggested that Chris finally return to graduate school and get a job that would pay him enough money to meet his expenses.

Could the above have been prevented? What if Ben and Chris had met with a mediator prior to the marriage and discussed the terms of an antenuptial agreement? Had that occurred Ben would likely have been more than willing to divide the majority of the homestead equity with Chris based upon the value of the home at the time of the marriage. He would likely have agreed to the same approach regarding his retirement plan and his company stock. Why not? Chris had shared his life for the last 20 years. Chris improved the home, maintained the home, cooked most of the meals, made the reservations for their vacations, and was in charge of entertaining Ben’s business associates. They discussed and resolved with the mediator what would happen in the event of a divorce and also what would happen in the event of one predeceasing the other. They were referred to an attorney to assist them in drafting wills and met with an agent to discuss investing in long term health care insurance. Both had met with attorneys prior to the meeting with the mediator, and while they understood the applicable law, they were more interested in what was fair for both of them than the “letter of the law.”

Antenuptial agreements are looked at favorably by the courts in Minnesota. As long as the agreement meets with the statutory procedural requirements and is substantively fair, the court is going to enforce the agreement even over the objections of one of the parties. Antenuptial agreements are not expensive taking into consideration the possible alternative of an expensive and emotionally exhausting divorce. Most of the time two to four hours of mediation is sufficient and the remaining cost would be for an attorney to draft the document. If you are considering having an antenuptial agreement drafted, please meet with your mediator well in advance of the wedding. I would recommend at least six months prior to the wedding. I have seen too many cases where the couple waits until a few weeks before the wedding to meet with their mediator and when emotions are running high as the marriage date gets closer. Your wedding should be enjoyed, so address this well in advance. Most mediators will do a short free consultation with the couple, so that everyone is comfortable working together. I love doing this kind of work when a couple is working together to reach a fair and equitable approach to possible future circumstances. They leave my office happy and content. I cannot say the same thing about my clients who have experienced a bitter divorce.

Martin L. Swaden, Attorney at Law
Swaden Law Offices
Divorce/Matrimonial Law
7301 Ohms Lane, Suite 550
Edina, MN 55439
(952) 832-5990
[email protected]
www.swaden.com